Thursday, 1 May 2008

COE Human Rights Report on Ireland Released

As part of his visit to Ireland last November, COE Commissioner for Human Rights Thomas Hammarberg visited the Centre for Criminal Justice and Human Rights and met with members to discuss and highlight issues of particular concern. This visit is mentioned in his Report which was released yesterday. The Report makes a total of 34 Recommendations, which are listed below. The Government of Ireland’s response to these recommendations is included as an Appendix.

National system for protecting human rights

- Ratify Protocol No. 12 to the European Convention on Human Rights and the Convention on Action against Trafficking in Human Beings.
- Adjust the legal aid scheme to the extent that it reflects actual cost of living standards.
- Review the mandates of the different human rights complaints bodies with a view to optimising their effectiveness and independence as well as closing current protection gaps, with particular reference to the remits of the Ombudsman and the Ombudsman for Children.
- Provide comprehensive and comparative information to the public on the mandates and functions of different complaints mechanisms.
- Facilitate the interaction of authorities with civil society representatives at all levels to ensure that their experience and expertise can benefit policy formulation and implementation.
- Conduct a base-line study to assess the extent to which human rights are integrated into education and training, so that further needs can be identified and addressed for ensuring that human rights awareness reaches all walks of society.
- Develop a national action plan on human rights as an inclusive process for continuously improving human rights in Ireland.

Children’s rights

- Implement the National Action Plan for Social Inclusion 2007-2016 so as to significantly reduce the number of children experiencing consistent poverty.
- Use the opportunity of the proposed constitutional amendment to incorporate the best interests of the child as a general principle in the Irish Constitution, in line with the UN Convention on the Rights of the Child.
- Prohibit corporal punishment of children in a comprehensive way.
- Provide for professional care in the accommodation facilities for separated children and assign a guardian ad litem to each separated child.
- Address the increasing demand for choice within the educational system, in particular with regard to cultural and religious diversity.
- Provide adequately resourced separate facilities and services for minor psychiatric patients, and make early intervention at a local level possible for such children.

Juvenile justice

- Ensure full implementation of the Children Act 2001 and its sentencing principles, for example, by providing guidance and specific training to the judiciary.
- Develop further the system of alternative sanctions for juvenile delinquents and ensure adequate funding for the system across the country.
- Review the current system of Anti-Social Behaviour Orders so that it does not lead to an increased use of detention and ensure its independent monitoring.
- Apply the Children Detention School model when the detention of juvenile offenders is deemed a necessary measure and discontinue the imprisonment of children in adult facilities.

Non-discrimination and women’s rights

- Review the resource needs of the Equality Tribunal to minimise its backlog of cases.
- Clarify the scope of legal abortions through statutory law in line with domestic jurisprudence and provide for adequate services for carrying out such abortions in Ireland.
- Change the law on birth registration in such a way that transgender persons can obtain a birth certificate reflecting their actual gender.
- Provide the National Office for the Prevention of Domestic, Sexual and Gender-based Violence with adequate resources for the effective fulfilment of its broad mandate while, in particular, ensuring effective support for women victims of violence through services supplied by both state and civil society operators.

Measures against racism and xenophobia

- Monitor the implementation of the National Action Plan against Racism and the local anti-racism and diversity plans in close cooperation with civil society and ethnic and cultural minority representatives, while preparing new action plans to succeed the current ones.
- Improve data collection on racist and xenophobic incidents.
- Provide for the racist motivation of a crime to be considered as an aggravating circumstance in Irish criminal law.

Situation of Travellers

- Work closely with Travellers when preparing, implementing and monitoring policies and programmes designed for the Travellers.
- Promote the participation of Travellers in political decision-making at local and national level.
- Ensure that Travellers are effectively protected against discrimination and racism under national and international law.

Treatment of migrants and asylum-seekers

- Ensure that the right to remain in Ireland during the procedure is granted to asylum-seekers who appeal asylum decisions which raise questions in relation to Article 3 of the European Convention on Human Rights.
- Reconsider the provision in the proposed Immigration, Residence and Protection Bill which would direct costs for so called “frivolous and vexatious” proceedings to the legal counsel of the applicant.
- Provide family accommodation to families with children seeking asylum in Ireland.
- Introduce temporary work permits for asylum-seekers.
- Introduce statutory provisions regulating family reunification for all groups of people.
- Implement the principle of the best interests of the child in decisions within the field of immigration and refugee law related to children.

Fight against terrorism: extraordinary renditions

- Review the current inspection and monitoring arrangements in Ireland with a view to ensuring that effective and independent investigations are carried out into any serious allegation of extraordinary renditions

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Wednesday, 9 April 2008

(UK) Court of Appeal applies Saadi v Italy and Prevents Deportation to Libya

Today the Court of Appeal (Civil Division) released its judgment in AS & DD v Secretary of State for the Home Department [2008] EWCA Civ 289, which concerned the lawfulness of the deportation of the applicant to Libya, pursuant to a Memorandum of Understanding with the proposed receiving state.

The applicant was considered to pose risks to national security in the United Kingdom. He claimed that his right to be free from torture, inhuman and degrading treatment and punishment under both the ECHR and the Human Rights Act 1998 would be violated by the deportation as he faced a substantial risk of such treatment on return to Libya, and that the memorandum of understanding provided was not sufficient to discharge the United Kingdom’s positive obligations under Article 3, ECHR (on which see, esp., Soering and Chahal).

Drawing very heavily on the European Court of Human Right’s recent decision in Saadi v Italy (previously discussed on the CCJHR blog here), the Court of Appeal held that the test to be applied when considering whether deportation would constitute a human rights violation was as laid down in Saadi as follows:


Furthermore, the Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment ... in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof (see paragraphs 128 and 132 above) before indicating an interim measure under Rule 39 or finding that the enforcement of removal from the territory would be contrary to Article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion. (paragraph 142)


The Secretary of State for the Home Department conceded that this test would have been satisfied beyond doubt in this case were it not for the fact that a Memorandum of Understanding (i.e. diplomatic assurances) had been concluded between the UK and Libya. This memorandum, the respondent claimed, was sufficient to discharge the UK’s duty of non-refoulement under Article 3 ECHR.

In this respect the Court of Appeal held that the sufficiency of any memorandum must be decided on a case-by-case basis (paragraph 75). Although the Court did not, perhaps, articulate the principles of assessing the sufficiency of particular memoranda of understanding as clearly as it might have done, it did clearly state that in assessing whether Article 3 is satisfied it is important to consider the reality on the ground in the receiving country and the extent to which – taking into account the unpredictability of the future – it is likely that treatment violating Article 3 might take place notwithstanding the memorandum of understanding.

Whether this decision will be appealed to the House of Lords remains to be seen, but as the judgment is substantively based on Saadi it seems unlikely that the Law Lords would reverse. In essence, then, the judgment outlines three principles:


  1. The protections of Article 3, ECHR are absolute and remain absolute notwithstanding the alleged misbehaviour/terrorist status/national security risk posed by the individual(s) concerned;
  2. In assessing whether deportation would constitute a violation of Article 3 a Court must consider whether there is “a real risk of ill-treatment”, taking into account all of the evidence before it and the necessarily speculative nature of the exercise;
  3. A Memorandum of Understanding/diplomatic assurance can, in principle, be sufficient to ensure compliance with Article 3, but the mere existence of such a memorandum is not sufficient in and of itself. Rather, the court must be satisfied that the situation in the proposed receiving state is such that the memorandum will be effective in protecting the individual from behaviour that violates Article 3.

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Wednesday, 23 January 2008

What happens the detainees when the War on Terrorism ends?

University of Pittsburgh’s excellent JURIST blog today reports on a draft bill before the Iraqi parliament which would allow for the release of approximately 5,000 current detainees in Iraq and provide those released with an amnesty. Although there are some quite severe difficulties with the Bill – not least the fact that excludes from its provisions all those in US custody and those imprisoned for, inter alia, adultery and homosexuality – and the fact that it is not targeted as a response to terrorism-related detentions, the Bill’s presentation does raise an important question: what will ‘we’ do with those detained on suspicion of terrorist activities when the ‘War on Terrorism’ ends?

To take Guantanamo Bay as an example, the United States has repeatedly asserted its desire to close the detention facility there but cites concerns about the destination and future conduct of detainees, including reluctance by ‘home states’ to have their citizens repatriated, as one of the major obstacles to closure. In addition, any detainees who may have been subjected to unlawful treatment in detention including torture clearly pose a litigation risk to the United States. To this end, some insurance policies may cover people against mistreatment claims (see NYT piece here). In addition, national security and separation of powers arguments may be successfully used to prevent litigation in US courts by those who claim to be the victims of such ill-treatment. For example, the DC Circuit court last week decided Rasul v Myers in which the court , finding that the claimant could not succeed in a damages claim against the government, held:

The present case involves the method of detaining and interrogating alleged enemy combatants during a war--a matter with grave national security implications. Permitting damages suits by detainees may allow our enemies to “obstruct the foreign policy of our government.” Moreover, dealing with foreign relations is primarily delegated to the executive and legislative branches, see...and creating a damages action could produce “multifarious pronouncements by various departments.” Nor does our government's unanimous condemnation of torture answer this concern, since where to draw that line is the subject of acrimonious debate between the executive and legislative branches. Treatment of detainees is inexorably linked to our effort to prevail in the terrorists' war against us, including our ability to work with foreign governments in capturing and detaining known and potential terrorists. Judicial involvement in this delicate area could undermine these military and diplomatic efforts and lead to “embarrassment of our government abroad.”

Notwithstanding these potential protections from liability, per se, the release of prisoners who claim torture or serious ill-treatment might well have a masive reputational impact on the United States. Writing about this issue in a piece entitled “United States Policy Towards Enemy Detainees in the ‘War on Terrorism’” published in the Human Rights Quarterly, the formidable scholar David Forsyth recently evoked the French-strategy following the Algerian war (i.e. of mass killings to prevent torture victims from speaking out) and wrote:



Accordingly, the democratic French, who had greatly contributed to the theory and practice of human rights, committed torture. And because the French had tortured, they could not put their enemies on trial; instead, they summarily executed them. Their efforts to sweep these atrocities under the rug for many years led to the loss of their self-respect, as well as the respect of many others, starting with the Arab-Islamic world. Torture may have helped the French win the battle of Algiers, but their policy of abuse led to many negatives, including increased domestic criticism and loss of reputation in the world; meanwhile their enemies failed to lessen their struggle. The Bush policy toward enemy detainees replicates much of this French experience.

….

US nationalism after 11 September 2001 has been less intolerant than some periods in US history; the Wilson and McCarthy eras quickly come to mind. But perhaps that is due to the lack of open, vigorous debate and dissent about Bush’s security policies. Given this lack of serious domestic debate, the Bush Administration has been able to sustain its policy of abusive interrogation, even if it has had to clean up detention practices in military facilities. International criticism has been much less important than domestic factors, although the role of the ICRC is not without importance.

The situation is not totally new, not only by comparison to France in Algeria. During the Cold War, the United States then too spoke of freedom and human rights and the rule of law but acted in the shadows to overthrow elected governments and back murderous allies, as in Chile and Guatemala. But to paraphrase Satre in the earlier quote, why should Americans go to such trouble to be patriots if their country in reality stands for torture and other serious violations of fundamental human rights? The French have much to say on the subject.



A law such as that proposed in Iraq is unlikely to solve the problems to be faced by the United States at the ‘cessation of hostilities’ when even its (shaky) IHL grounds for detention are gone, but it may well become time to start thinking about strategy. Although the candidates for presidential nominations from both the GOP and the Democratic party have address Guantanamo and the ‘War on Terrorism’ (for a useful summary of GOP hopefuls' approaches see here), none appear to have come up with a sustained strategy to avoid a repetition of what Forsyth might call ‘the French lesson’.

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Friday, 4 January 2008

US Court: NGOs enjoy privilege in relation to sources

The US District Court for Eastern New York has held that human rights organisations have an equivalent right to protect their sources to that enjoyed by journalists. The case concerned an Amnesty International report in which lawyers – quoted anonymously – expressed concerns that their meetings with clients at a federal jail were being secretly videotaped. The Court held that Amnesty was not obliged to reveal its sources.

The decision is an important one – important enough to perhaps be litigated further and to higher federal courts – because human rights organisations such as Amnesty, Human Rights First and Human Rights Watch (for example) frequently rely on victims and others for their reports, while those from whom testimonials are taken rely on anonymity for their safety.

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Thursday, 3 January 2008

Human Rights Internships in Brussels

The Brussels-based Magna Carta Institute - a self-described "not-for-profit Brussels-based independent research institute, university spin-off and academic network specializing in human rights and international law" - has advertised its internship programmes for 2008 including internships in human rights and terrorism, human rights and business law, the history of international law and international relations, and region-specific human rights issues. Full details of the internships are available here.

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Wednesday, 28 November 2007

Bellinger on Geneva Conventions and Terrorism

US State Department Legal Advisor John Bellinger has called on the international community to ‘clarify’ the contents and scope of application of the Geneva Conventions (International Herald Tribune). In an address to reporters at the ICRC annual meeting, Bellinger claimed that the Conventions apply to conflicts between states and thus do not offer guidance as to how long one can hold people in conflicts with non-state actors. The view does seem somewhat at odds with the position of the US Supreme Court expressed in the Hamdan decision that Common Article 3 of the Conventions – applying to ‘non-international armed conflicts’ – could apply to conflicts between states and non-state actors (although it’s not necessarily the case that this is correct or that the court was sufficiently rigorous in its application of IHL: see Fionnuala Ni Aolain’s insightful critique in the Minnesota Law Review).

More interesting, however, is Bellinger’s contention that “[t]he United States is firmly committed to the law that applies. We're also committed to working with other countries around the world to develop new legal norms in cases where existing law does not give one the answers. But what we do think is problematic is to simply suggest that the Geneva Conventions provide all of the answers in fighting international terrorism, and that countries simply need to follow the Geneva Conventions and that is the end of the matter”. This appears to suggest that there is no law to govern detention of suspected terrorists, when in fact there clearly is: international human rights law.

Nobody suggests that the application of the Geneva Conventions is the end of the matter. The ICJ (in the Advisory Opinion on Nuclear Weapons) and many commentators have noted that international human rights law continues to apply in parallel with and through the prism of international humanitarian law. The United States, however, predominantly takes the position that IHRL does not apply in times of IHL-application. The root of the problem arguably lies not in deficiencies within the international legal code, but rather in the restricted view of applicable law on the part of the US authorities.

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Thursday, 18 October 2007

Mental Health & Human Rights: Challenges for Law and Practice

Posted below are details of a seminar to be hosted by the Centre for Criminal Justice and Human Rights, Faculty of Law, UCC on human rights implications of mental health law. Please circulate this to all those who you think might be interested and to any students, practitioners or researchers who may wish to attend. The seminar should of equal interest to lawyers and mental health and welfare professionals and students. Please RSVP as soon as possible to d.appelbe@ucc.ie
Full details are available here

5.30 Registration; Tea/Coffee
6.00 p.m.
• Welcome and Introduction: Professor Caroline Fennell, Dean of the Faculty and Head of the Department of Law, U.C.C.
• Seminar Chair: Dr. Edmond O'Dea, Chairman, Mental Health Commission
• Keynote address: Dr. Jimmy Devins, T.D., Minister of State with responsibility for Disability and Mental Health
• Dr. Darius Whelan (Faculty of Law, U.C.C.) - ‘European Human Rights Standards in the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006’


This paper will discuss the compatibility of the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006 with the European Convention on Human Rights. It will consider issues relating to the powers and structure of Mental Health Tribunals and the Mental Health (Criminal Law) Review Board. The primary focus will be on Articles 5 and 6 of the ECHR and case-law such as Winterwerp v Netherlands, Johnson v UK and L.R. v France.


• Ms. Áine Hynes (Roger Greene & Sons, Solicitors, Dublin) - ‘The Mental Health Act 2001 in Practice: a Legal Representative’s Viewpoint’

• Dr. Mary Donnelly (Faculty of Law, U.C.C.) - ‘Treatment for Mental Disorders and Protection of Patients’ Rights’


This paper considers a range of human rights issues arising in the context of treatment for a mental disorder. Its focus is not just on patients who have been compulsorily detained under the Mental Health Act 2001and who come under the treatment framework set out in the MHA but also on those patients in psychiatric facilities (the vast majority) whose treatment is not covered by the MHA and which, currently is subject to the most minimal legal oversight.

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